Abdulgani D. Jambagi v. The State of Karnataka, reptd. by its Secretary, Dept. of Urban Development

(By Sri Umesh V. Mamadapur, Adv.) And: 1 2 3 The State of Karnataka, reptd. by its Secretary, Dept. of Urban Development, Govt. of Karnataka, Vikas Bhavan, Bangalore. The Deputy Commissioner, Bijapur Dist. The Commissioner, City Municipal Council, Bijapur, Reptd. by its Commissioner. 2 4 Anand Kumar Desai, S/o Chandrakanth Desai, Aged about 38 years, Near Vittal Mandir Road, Bijapur. …. Respondents. (By Sri Mallikarjuna Sahukar, HCGP for R1 & R2 Sri P.S.Mali Patil, Adv.for R3 M/s Shivayogimath A/S, Advs.for R4) (cid:1)(cid:1)(cid:1) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India, praying to cancel the consequential sale deeds executed by 3rd respondent in favour of 4th respondent dated 15.10.2011 in respect of shops in CTS Nos.383 and 397 situated at Ward No.3 of Bijapur City, vide Annexures ‘Y1’ and ‘Y2’, etc. These Writ Petitions coming on for orders this day, the Court passed the following: ORDER The contention of the petitioner is that the City Municipal Council (‘CMC’ for short), Bijapur, had leased the property bearing CTS No.383 measuring 72 sq.yards and CTS No.397 measuring 46 sq.yards in favour of one Emiliya D’Souza for a period of 99 years in the year 1887. The said properties contain shops as well as vacant land. It is further contended that petitioner has taken on lease two shops from Emiliya D’Souza in the year 1922 and that he has been 3 in possession and enjoyment of the same. CMC, Bijapur, has executed two sale deeds at Annexures ‘Y1’ and ‘Y2’ both dated

15.10.2011 in respect of the entire property in favour of 4th respondent. As per the Government Order at Annexure ‘S’ dated

7.6.2010, the CMC ought to have executed the sale deed in respect of the two shops in his favour. Therefore, he has filed these writ petitions for quashing the aforesaid two sale deeds at Annexures ‘Y1’ and ‘Y2’ respectively.

Respondent Nos.2 and 3 contend that Emiliya D’Souza had sold her lease hold rights in respect of the aforesaid two properties in favour of one Smt. Kashibai on 17.3.1944. The 4th respondent is the grand son of Kashibai. That is why the CMC, Bijapur, has executed the aforesaid two sale deeds in favour of the 4th respondent in accordance with the Government Order at Annexure ‘S’ dated

7.6.2010. It is further argued that petitioner has no right, title, interest whatsoever in respect of the aforesaid two shops.

I have heard the learned Counsel for the parties. 4

The contention of the petitioner is that Emiliya D’Souza was granted long lease of 99 years in respect of the aforesaid two properties by the CMC, Bijapur. The petitioner is a sub-tenant in respect of the two shops under Emiliya D’Souza. His case is that as per the Government Order, he is entitled to purchase the two shops from the CMC. On the other hand, the contention of respondent Nos.2 and 3 is that Emiliya D’Souza had sold her lease hold rights in favour of Kashibai. The CMC, Bijapur, executed two sale deeds in respect of the said properties in favour of the 4th respondent, who is none other than her grand son. This matter involves disputed questions of fact. This question cannot be resolved in a summary proceedings under Article 226 of the Constitution because it requires detailed examination of the evidence as may be had in the suit. The object of Article 226 is the enforcement and not establishment of a right or title. The petition under Article 226 cannot be converted into a suit. It is well established that in case of highly disputed question of fact, civil suit would be the appropriate action. Therefore, I decline to entertain these writ petitions. They are accordingly 5 dismissed reserving liberty to the aggrieved parties to approach the Civil Court for appropriate reliefs. All the contentions on merit are kept open. No costs. Sd/- JUDGE. BMM/-